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Certain Portable Battery Jump Starters and Components Thereof; Notice of the Commission's Final Determination With Respect to Defaulting Respondents; Issuance of a Limited Exclusion Order; Termination of the Investigation Publication: Federal Register Agency: International Trade Commission Byline: Katherine Hiner Date: 2 September 2022 Subject: American Government 
Topic: Noco |
[Federal Register Volume 87, Number 170 (Friday, September 2, 2022)]
[Notices]
[Pages 54260-54262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18998]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1256]
Certain Portable Battery Jump Starters and Components Thereof;
Notice of the Commission's Final Determination With Respect to
Defaulting Respondents; Issuance of a Limited Exclusion Order;
Termination of the Investigation
AGENCY: International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has found the requirements of the Tariff Act of 1930, as
amended, met, based on a complaint filed by the NOCO Company alleging a
violation with respect to U.S. Trademark Registration Nos. 4,811,656
(``the '656 mark'') and 4,811,749 (``the '749 mark'') by defaulting
respondent Zhejiang Quingyou Electronic Commerce Co., Ltd. (``Zhejiang
Quingyou'') and with respect to the '749 mark by defaulting respondent
Shenzhen Mediatek Tong Technology Co., Ltd. (``Mediatek''). The
Commission has determined to issue a limited exclusion order against
defaulting respondents Zhejiang Quingyou and Mediatek. The
investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5468. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
EDIS3Help@usitc.gov. General information concerning the Commission may
also be obtained by accessing its internet server (https://www.usitc.gov). Hearing-impaired persons are advised that information
on this matter can be obtained by contacting the Commission's TDD
terminal, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On March 23, 2021, the Commission instituted
this investigation based on a complaint filed on behalf of The NOCO
Company of Glenwillow, Ohio (``NOCO''). 86 FR 15496-98 (Mar. 23, 2021).
The complaint, as supplemented and amended, alleges a violation of
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337
(``section 337''), in the importation into the United States, the sale
for importation, and the sale within the United States after
importation of certain portable battery jump starters and components
thereof by reason of infringement of one or more of claims 1, 4, 11,
14, 18, 19, and 21 of U.S. Patent No. 9,007,015 (``the '015 patent'')
and claims 1, 4-6, 16, 19, 23, 24, 26, 29, and 30 of the '024 patent,
and infringement of the '656 and '749 marks. Id. at 15497.
The notice of investigation named the following respondents: (1)
Advance Auto Parts, Inc. of Raleigh, North Carolina; (2) Anker
Technology (UK) Ltd. of Birmingham, United Kingdom; (3) Antigravity
Batteries LLC of Gardena, California; (4) Arteck Electronic Co., Ltd.
of Shenzhen, China; (5) AutoZone, Inc. of Memphis, Tennessee; (6) Best
Buy Co., Inc. of South Richfield, Minnesota; (7) Best Parts, Inc. of
Memphis, Tennessee; (8) Clore Automotive, LLC of Lenexa, Kansas; (9)
Deltran USA, LLC of DeLand, Florida; (10) Energen, Inc. of City of
Industry, California; (11) FlyLink Tech Co., Ltd. of Shenzhen, China;
(12) Gooloo Technologies LLC and Shenzhen Gooloo E-Commerce Co., Ltd of
Shenzhen, China; (13) Great Neck Saw Manufacturers, Inc. of Mineola,
New York; (14) Guangdong Boltpower Energy Co., Ltd of Shenzhen City,
China; (15) Halo2Cloud, LLC of Hartford, Connecticut; (16) Horizon
Tool, Inc. of Greensboro, North Carolina; (17) K-Tool International of
Plymouth, Michigan; (18) Lowe's Companies, Inc. of Mooresville, North
Carolina; (19) Matco Tools Corporation of Stow, Ohio; (20) MonoPrice,
Inc. of Brea, California; (21) National Automotive Parts Association,
LLC (d/b/a NAPA) of Atlanta, Georgia; (22) Nekteck, Inc. of Anaheim,
California; (23) O'Reilly Automotive, Inc. of Springfield, Missouri;
(24) Paris Corporation of Westampton, New Jersey; (25) PowerMax Battery
(U.S.A.), Inc. of Ontario, California; (26) Prime Global Products, Inc.
of Ball Ground, Georgia;
[[Page 54261]]
(27) QVC, Inc. of West Chester, Pennsylvania; (28) Schumacher Power
Technology Ltd. of Yancheng, China; (29) Schumacher Electric Corp. of
Mount Prospect, Illinois; (30) Shenzhen Carku Technology Co., Ltd. of
Shenzhen, China; (31) Shenzhen Dingjiang Technology Co., Ltd. of
Shenzhen, China; (32) Shenzhen Jieruijia Technology Co. Ltd. of Gong
Ming, China; (33) Mediatek of Shenzhen, China; (34) Shenzhen Take Tools
Co., Ltd. of Shenzhen, China; (35) Shenzhen Topdon Technology Co., Ltd.
of Shenzhen, China; (36) Shenzhen Valuelink E-Commerce Co., Ltd. of
Shenzhen, China; (37) Smartech Products, Inc. of Savage, Maryland; (38)
ThiEYE Technologies Co., Ltd. of Longgang, China; (39) Tii Trading Inc.
of Baldwin Park, California; (40) Walmart Inc. of Bentonville,
Arkansas; (41) Winplus North America, Inc. of Costa Mesa, California;
(42) Zagg Co. Rrd Gst of Plainfield, Indiana; (43) Zhejiang Quingyou of
Hangzhou, China; and (44) 70mai Co., Ltd. of Shanghai, China. Id. at
15497-98. The Office of Unfair Import Investigations is a party to the
investigation. Id. at 15498.
The Commission permitted NOCO to amend the amended complaint and
notice of investigation to make the following changes: (1) to
substitute Lowe's Home Centers, LLC, for Lowe's Companies, Inc.; (2) to
substitute O'Reilly Automotive Stores, Inc., O'Reilly Auto Enterprises,
LLC, and Ozark Purchasing, LLC, for O'Reilly Automotive, Inc.; (3) to
substitute Anker Innovations Ltd. (HK) for Anker Technology (UK) Ltd.;
(4) to substitute ZAGG Inc. for Zagg Co. Rrd; (5) to substitute
Shenzhen Dingjiang Technology Co., Ltd. (d/b/a Shenzhen Topdon
Technology Co., Ltd. and Topdon Technology Co., Ltd.) for Shenzhen
Dingjiang Technology Co., Ltd., and Shenzhen Topdon Technology Co.,
Ltd.; and (6) to add additional respondents related to Winplus North
America, Inc.--ADC Solutions Auto, LLC d/b/a/Type-S and Winplus NA,
LLC. Order No. 13 (Apr. 23, 2021), unreviewed by Comm'n Notice (May 18,
2021).
The Commission subsequently terminated the investigation with
respect to National Automotive Parts Association, LLC (d/b/a NAPA),
Shenzhen Jieruijia Technology Co., Ltd., and Shenzhen Take Tools Co.,
Ltd. based on a voluntary withdrawal of the complaint. Order No. 9
(Apr. 13, 2021), unreviewed by Comm'n Notice (May 12, 2021); Order No.
47 (Dec. 6, 2021), unreviewed by Comm'n Notice (Jan. 4, 2022). The
Commission also subsequently terminated the investigation based on a
settlement agreement with respect to the following respondents: Advance
Auto Parts, Inc.; Lowe's Home Centers, LLC; Ozark Purchasing, LLC;
O'Reilly Automotive Stores, Inc.; O'Reilly Auto Enterprises, LLC;
Shenzhen Dingjiang Technology Co., Ltd. (d/b/a Shenzhen Topdon
Technology Co., Ltd. and Topdon Technology Co., Ltd.); Walmart, Inc.;
QVC, Inc.; AutoZone, Inc.; and Best Parts, Inc. Order No. 11 (Apr. 19,
2021), unreviewed by Comm'n Notice (May 4, 2021); Order No. 14 (Apr.
23, 2021), unreviewed by Comm'n Notice (May 18, 2021); Order No. 21
(Jul. 7, 2021), unreviewed by Comm'n Notice (Jul. 26, 2021); Order No.
31 (Sept. 20, 2021), unreviewed by Comm'n Notice (Oct. 12, 2021); Order
No. 35 (Oct. 20, 2021), unreviewed by Comm'n Notice (Nov. 22, 2021);
Order No. 44 (Nov. 15, 2021), unreviewed by Comm'n Notice (Dec. 6,
2021). Finally, the Commission terminated the investigation with
respect to Schumacher Electric Corp. and Schumacher Power Technology
Ltd. based on a consent order stipulation and entry of a consent order.
Order No. 52 (Jan. 12, 2022), unreviewed by Comm'n Notice (Feb. 4,
2022).
The Commission found several respondents in default for failing to
respond to the complaint, notice of investigation, and order to show
cause why they should not be found in default. These defaulting
respondents include the following: Energen, Inc.; FlyLink Tech Co.,
Ltd.; K-Tool International; MonoPrice, Inc.; Prime Global Products,
Inc.; Mediatek; Shenzhen Valuelink E-Commerce Co., Ltd.; ThiEYE
Technologies Co., Ltd; Tii Trading Inc.; Zhejiang Quingyou; and Arteck
Electronics Co., Ltd. Order No. 23 (Jul. 13, 2021), unreviewed by
Comm'n Notice (Jul. 30, 2021); Order No. 45 (Nov. 16, 2021), unreviewed
by Comm'n Notice (Dec. 10, 2021). The Commission also found Smartech
Products, Inc. in default based on its voluntary default. Order No. 28
(Aug. 9, 2021), unreviewed by Comm'n Notice (Aug. 20, 2021).
Accordingly, at the time of the evidentiary hearing, the following
respondents remained active in the investigation: Antigravity Batteries
LLC, Gooloo Technology LLC and Shenzhen Gooloo E-Commerce Co., Ltd.,
Horizon Tool, Inc., Nekteck, Inc., PowerMax Battery (U.S.A.), Inc.,
Shenzhen Carku Technology Co., Ltd., 70mai Co., Ltd., Matco Tools
Corporation, Paris Corporation, and Great Neck Saw Manufacturers, Inc.
(collectively, the ``Carku respondents''); Guangdong Boltpower Energy
Co., Ltd. and Best Buy Co., Inc. (collectively, the ``Boltpower
respondents''); and Winplus North America, Inc., Winplus NA, LLC, and
ADC Solutions Auto, LLC d/b/a Type S (collectively, the ``Winplus
respondents'').
The Commission also terminated the investigation with respect to
claims 4, 14, 18, and 21 of the '015 patent and claims 4, 5, 6, 19, 23,
and 26 of the '024 patent based on NOCO's partial withdrawal of the
complaint. Order No. 27 (Aug. 6, 2021), unreviewed by Comm'n Notice
(Aug. 18, 2021). The Commission later terminated the investigation with
respect to the '015 patent in its entirety. Order No. 46 (Dec. 6,
2021), unreviewed by Comm'n Notice (Jan. 4, 2022).
Accordingly, at the time of the evidentiary hearing, the '656 mark,
the '749 mark, and claims 1, 16, 24, 29, and 30 of the '024 patent
remained asserted in the investigation. Specifically, NOCO asserted the
following: claims 1, 16, 24, 29, and 30 of the '024 patent against the
Carku respondents; claims 1, 16, 24, 29, and 30 against the Boltpower
respondents; claims 1, 16, 29, and 30 against the Winplus respondents;
and claims 1, 29, and 30 against ten of the twelve defaulting
respondents. Final ID at 8-9. NOCO also accused defaulting respondent
Mediatek of infringing the '749 mark and defaulting respondent Zhejiang
Quingyou of infringing the '749 mark and the '656 mark. Id. at 338.
NOCO's post-hearing brief did not contain infringement allegations
against defaulting respondents FlyLink Tech Co., Ltd. and Arteck
Electronics Co., Ltd. See CIB at 71-72, 183; Final ID at 8-9, 338.
On April 29, 2022, the ALJ issued a Final Initial Determination
(``ID'') finding a violation with respect to the '749 mark by
defaulting respondent Mediatek and with respect to the '656 and '749
marks by defaulting respondent Zhejiang Quingyou, and finding no
violation with respect to the '024 patent. Specifically, with respect
to the '024 patent, the ID finds that NOCO showed that the products of
the Boltpower respondents and the ten defaulting respondents infringe
the asserted claims of the '024 patent, but that NOCO failed to show
that the products of the Carku respondents and Winplus respondents
infringe the asserted claims. The ID further finds that no asserted
claim of the '024 patent was shown to be invalid or unenforceable.
Additionally, the ID finds that NOCO satisfied the economic prong of
the domestic industry requirement but failed to satisfy the technical
prong as to the '024 patent, and thus failed to establish a violation
of section 337 as to that patent.
[[Page 54262]]
The Commission received no post-Recommended Determination
submissions on the public interest.
On May 13, 2022, NOCO filed a petition with respect to the '024
patent, seeking review of certain of the Final ID's findings on the
technical prong of the domestic industry requirement and infringement
and seeking contingent review of certain of the Final ID's findings on
invalidity. That same day, Boltpower filed a petition seeking review of
certain of the ALJ's and ID's findings on claim construction and
infringement with respect to the '024 patent. Also on May 13, 2022, the
Carku and Winplus respondents filed a joint contingent petition with
respect to the '024 patent, seeking review of the Final ID on numerous
issues related to infringement, invalidity, the technical prong of the
domestic industry requirement, and the economic prong of the domestic
industry requirement. No petitions were filed concerning the Final ID's
findings with respect to the asserted trademarks. On May 23, 2022, the
parties and OUII filed responses to each other's petitions.
On June 30, 2022, the Commission determined not to review the Final
ID's findings of a violation of section 337 with respect to the '656
mark and the '749 mark by defaulting respondent Zhejiang Quingyou and
with respect to the '749 mark by defaulting respondent Mediatek. The
Commission presumes that the allegations in the second amended
complaint against Zhejiang Quingyou and Mediatek are true with respect
to the '656 and '749 marks based on those respondents' defaults. 19
U.S.C. 1337(g)(1). The Commission also determined to review in part the
Final ID's finding of no violation of section 337 with respect to the
'024 patent and, on review, to affirm the Final ID's finding of no
violation due to NOCO's failure to satisfy the technical prong of the
domestic industry requirement. The Commission determined to take no
position on the remainder of Final ID's findings under review. Beloit
Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984). The
Commission's notice requested that the parties, interested government
agencies, and the public provide written submissions on remedy,
bonding, and the public interest with respect to defaulting respondents
Zhejiang Quingyou and Mediatek.
Having examined the parties' submissions concerning remedy, the
public interest, and bonding, the Commission has determined, pursuant
to subsection 337(g)(1) (19 U.S.C. 1337(g)(1)), that the appropriate
form of relief in this investigation is a limited exclusion order
(``LEO'') with respect to Zhejiang Quingyou prohibiting the importation
of certain portable battery jump starters and components thereof that
infringe the '656 or '749 marks and with respect to Mediatek
prohibiting the importation of certain portable battery jump starters
and components thereof that infringe the '749 mark. Although NOCO
requested the Commission to issue cease and desist orders (``CDOs'')
directed to these defaulting respondents, the Commission has determined
not to issue CDOs because of the lack of evidence or allegations that
Zhejiang Quingyou or Mediatek maintain commercially significant
inventory and/or engage in significant commercial operations the United
States. The Commission has further determined that the public interest
factors enumerated in subsection 337(g)(1) do not preclude the issuance
of the limited exclusion order.
Commissioner Schmidtlein and Commissioner Karpel agree that
subsection 337(g)(1) is the appropriate authority for issuance of
relief in this case, but they disagree with the determination not to
issue the CDOs requested by NOCO. Specifically, Commissioners
Schmidtlein and Karpel support issuance of both the requested LEO and
the requested CDOs against defaulting respondents Zhejiang Quingyou and
Mediatek because the criteria for issuance of such relief under
subsection 337(g)(1)(A)-(E) are met as to these respondents. (19 U.S.C.
1337(g)(1)(A)-(E); see Order No. 23 at 2 (July 13, 2021); Notice of a
Commission Determination Not to Review an Initial Determination Finding
Ten Respondents in Default (July 30, 2021)). Here, in addition to an
exclusion order, NOCO has requested CDOs as to these two defaulting
respondents both in its post-hearing briefing before the ALJ and in its
remedy submission before the Commission. Given that subsections
337(g)(1)(A)-(E) are satisfied, in Commissioner Schmidtlein's and
Commissioner Karpel's view, the statute directs the Commission to issue
the requested CDOs, subject to consideration of the public interest.
Commissioners Schmidtlein and Karpel further find that the public
interest factors enumerated in subsection 337(g)(1) do not preclude the
issuance of the CDOs directed to defaulting respondents Zhejiang
Quingyou and Mediatek. Accordingly, Commissioners Schmidtlein and
Karpel support issuance of the CDOs, in addition to the issuance of the
LEO discussed above, under subsection 337(g)(1).
Finally, the Commission has determined that the bond for
importation during the period of Presidential review shall be in the
amount of one hundred percent (100%) of the entered value of such
articles.
The Commission's notice and order were delivered to the President
and to the United States Trade Representative on the day of their
issuance. The Commission has also notified the Secretary of the
Treasury and Customs and Border Protection of the order. The
investigation is hereby terminated.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: August 29, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-18998 Filed 9-1-22; 8:45 am]
BILLING CODE 7020-02-P